Zilke v. Woodley

• Decision Date: 21 October 1904
• Citation: 78 P. 299,36 Wash. 84
• Parties: ZILKE v. WOODLEY.
• Court: Washington Supreme Court

78 P. 299

36 Wash. 84

ZILKE v. WOODLEY.

Supreme Court of Washington

October 21, 1904

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action of interpleader by the Traders' National Bank against J R. Woodley and others. From a decree rendered, Kachrlis Zilke appeals. Affirmed.

J. D. Campbell and P. C. Shine, for appellant.

Merritt & Merritt, for respondent.

HADLEY J.

The plaintiff in this action, the Traders' National Bank brought the suit against J. R. Woodley, who is the respondent here, and also joined as defendant Kachrlis Zilke, who is the appellant here. Certain other persons were also joined as defendants. The complaint alleges that the plaintiff has in its possession $900 in money; that said Woodley claims to be the owner and entitled to the possession thereof, and has demanded that plaintiff shall pay it to him; that the other defendants also claim to be the owners, and have demanded that it shall be paid to them. Disclaiming any interest in the money, the plaintiff brought it into court, deposited it with the clerk, and asked that the defendants should interplead, and that their conflicting claims should be determined in this action. The said defendant Zilke answered separately, alleging that his codefendant Woddley has no interest in the money, and, further, that the other codefendants have in writing assigned to Zilke their interest therein. He asks that the money shall be adjudged to be his and that it shall be delivered to him. The defendant Woodley also answered separately, and averred that he and one Hubbell were associated together, doing a general real estate business in the city of Spokane under the firm name of J. R. Woodley & Co.; that on the 30th day of August 1903, the other defendants entered into a written contract with said firm, by which they agreed to pay the latter the sum of $200 for each defendant for services in locating each defendant upon a timber claim of 160 acres upon unsurveyed land in the Pend d'Oreille timber district; that by the terms of the agreement $50 was to be paid in advance to cover the expense of running the lines of the several claims, and the balance of $200 for each claim was to be paid when the said defendants had seen the land and made their selection; that upon the execution of the contract, and contemporaneously therewith, said defendants paid thereon the sum of $100; that thereafter Mr. Hubbell, of the above-named firm, went with said defendants to said timber district and located them upon timber claims in conformity with the contract; that upon the return of said defendants from the timber district, after they had been so located, and on September 3, 1903, they paid to said firm the further sum of $50 as part payment upon the contract; that on the next day the defendants went to the bank of plaintiff, delivered to it certain bank drafts and a certain savings bank book, directed plaintiff to collect the same, and placed $1,000 thereof to the credit of said Woodley; that on the same day said Woodley borrowed of the bank the sum of $100, and executed his note therefor, and thereafter, when the bank received the money from the said drafts, etc., it deducted from said $1,000, which was to be credited to the account of Woodley, the sum of $100 as and for payment of said note. The answer concludes with a prayer that J. R. Woodley & Co. shall be adjudged to be the owners of said $900, and that an order be made directing it paid to them. The said defendant Zilke, for himself and his assignors, replied to the answer of Woodley, alleging ignorance and illiteracy on the part of the defendants, and false and fraudulent representations on the part of Woodley, by which, it is claimed, they were deceived and misled as to the location, character, and environment of said timber claims. He demands judgment against Woodley for $250, being the amount of $150 paid upon the contract, together with the sum of $100 applied upon his note at the bank as aforesaid. Before proceeding with the trial, the plaintiff bank, by consent of all parties, was dismissed from the action, and absolved from any liability in the premises. The cause was then tried by the court without a jury upon the issues formed by the aforesaid pleadings between the defendants, and resulted in a judgment that J. R. Woodley & Co. are the owners and are entitled to the possession of said sum of $900, and it was ordered that the clerk shall pay the same to them. From said judgment and order said defendant Zilke has appealed.

It is assigned that the court erred in refusing appellant a jury trial. The record shows that some time before the trial a written demand for a jury trial was filed, accompanied with the payment of $12 as a jury fee. When the cause was about to be called for trial, the...